Case Number: PSES162 OF 18 TO 19 GP
Applicant: SAOU obo CJ Wiese
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 25 November 2019
Arbitrator: Trevor Wilkes
Case Number: PSES162 OF 18 TO 19 GP
Commissioner: Trevor Wilkes
Date of Award: 25 November 2019
In the MATTER between
SAOU obo CJ Wiese
Department of Education-Gauteng
Union/Applicant’s representative: Miss Trent SAOU
Respondent’s representative: Miss Mahlangu (GDE) & Mr Madika NAPTOSA
E-mail: Barbara.firstname.lastname@example.org; email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for the first time on 25 January 2019 at 9h00 at the LSEN School roodepoort. The applicant was represented by Miss Trent a union official of SAO, the first respondent was represented by Mahlangu and the second respondent by Mr Madika of NAPTOSA.
2. There were some postponements but evidence was heard on 5 March 2019, 12 June 2019 and 30 September 2019.
3. I adopted a quasi-adversarial approach because the representatives of both parties were experienced and of similar comparative ability.
4. Onus and evidence in chief were explained when issues were narrowed down.
5. The proceedings were electronically recorded.
6. The parties’ request to file closing argument by 7 October 2019 was granted. It is on file in writing and referred to where relevant.
7. The applicant was at the time that the dispute arose employed by the respondent at Roodepoort High School, as Subject head of department (hereinafter referred to as the ‘old post’). She is currently acting in a vacant funded post as deputy principal although still officially employed in the old post.
8. She applied for a post Post JW18ED1009B Deputy Principal Hoërskool Roodepoort (hereinafter referred to as the ‘new post’).
ISSUE TO BE DECIDED
9. I must decide whether the applicant has been subjected to an unfair act or omission of the respondent involving relating to the promotion of the applicant.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANTS’ CASE
10. Reuben Janse Van resnburg testified that he became aware of the issue concerning the filling of the post when he had had a discussion in the staff room and as a result after a number of telephone calls including one to Dr Sondezi, he had decided to call a special urgent meeting of the SGB.
11. At this meeting Dr Sondezi had apologised and on request of the SGB had undertaken to write to the head of department and district director to rectify the situation.
12. He referred to the letter which resulted.
13. He stated that at the selection panel meeting originally it had been agreed that the candidate who scored the highest would be recommended without further discussion and therefore that an appointment of the second respondent on the basis of rationalisation to motivate recommendation for appointment was not what was agreed to by the SGB.
14. During cross-examination he did not deny that the documentation which had been forwarded to the respondent's district office appeared on the face of the to be in order.
15. He stated that he and the other selection panel members had signed off on the recommendation of the applicant as the highest scorer and that the second respondent was not recommended because she had not scored the highest.
16. Heidi Schmid (Casarotto) testified that she was teaching at the Roodepoort high school and held the position of head of department and also had been requested to be on the selection panel.
17. She confirmed the previous witnesse’s evidence that it had been agreed by the selection panel that without discussion the highest scoring candidate would be recommended. She confirmed that she had signed off on the recommendation of the first of the applicant.
18. Johannes Miarthinus Bisshoff stated that he was also teaching at the Roodepoort high school and was serving on the SGB and was also requested to serve on the selection panel.
19. He confirmed the evidence of the previous two witnesses.
20. Theodorus Johannes Smuts stated under oath that he was a member of the SGB, that he was an educator and was head of the department of humanities at the high school in question.
21. He had also been an applicant for the post which forms the subject matter of this arbitration and therefore was not selected to participate on the selection panel.
22. He confirmed the first witness of the applicant's evidence in regard to what had occurred at the special meeting of the SGB following the appointment of the second respondent.
23. Rene’ Venter stated that she had been requested by the acting principal to participate in the selection panel because the acting principal was precluded from participating in the process as she had herself been an applicant.
24. She was aware of the guidelines and confirmed the evidence of the first second and third witnesses in regard to what the agreement had been and how the selection panel had proceeded.
25. During cross-examination she conceded that because of her relationship with the applicant she probably ought to have recused herself.
THE RESPONDENT’S CASE
26. Lizwe Jafta testified that he was appointed in the human resource provisioning unit responsible for recruitment of educators and other employees as well as transfers. He had held this position since 2008.
27. He stated that he had received a recommendation from the Roodepoort high school. He had considered the documentation and after checking that it met the minimum requirements and whether it had been signed by the relevant persons he passed on the recommendation to the District Director to make the appointment in terms of the wishes of the SGB which were indicated to him on the document.
28. He stated that he had received a grievance from the SGB but that this had been received after five days and therefore the actions he took were merely to visit the school where according to him the SGB confirmed that the appointment was according to their wishes.
29. During questioning by the arbitrator he confirmed that the meeting with the SGB was held where all present were the same persons who had earlier on addressed the grievance to his offices.
30. During cross-examination he conceded that he had not passed on the grievance to the DDM division for further processing
ANALYSIS OF EVIDENCE AND ARGUMENT
31. What Dr Sondezi did by altering the recommendation without the proper authorisation from the SGB was irregular. That this occurred is supported by the documentation indicating from the minutes of the selection pannel that the highest score would be recommended without discussion.
32. The document containing the recommendation was not signed by all of these panel members. The recommendation which followed was not in line with this agreement. This is not the conduct of the respondent however. It is accepted that a recommendation of a shortlisted candidate who has not achieved the highest score is not in itself irregular nor is the head of department or district director unable to make such appointment.
33. However ultimately the recommendation did not constitute the will of the SGB as required by Section 6 (3)(a) of the Employment of Educators Act 76 of 1998.
34. Although one of the panel did under cross examination concede that she ought to have recused herself, there was no material evidence that undue influence had occurred and so the head of department did not invoke Section 6 (b) (iv) but made the appointment in the belief that the recommendation was regular.
35. That is to say when the director made the appointment of the second respondent, this was based on the document submitted by Dr Sondezi and Mr Wilters.
36. The only witness called by the respondent has not explained why he did not ensure that the recommendation was compliant with the wishes of the SGB. He did not ensure that the panel decision to recommend without discussion was adhered to.
37. The motivation to recommend the second highest scorer referred to ‘age’ which is discriminatory but that is not the dispute before me.
38. It follows as already mentioned that the actions of the head of department or district director to then go ahead with the appointment on the face of a recommended candidate does not constitute anything irregular.
39. However when the first respondent in the person of Mr Jafta received the grievance in writing on 5 May 2019 or sometime thereafter, indicating to him that there was unhappiness amongst the panel and SGB regarding the resulting appointment, his omission to take any steps to remedy the situation does constitute an unfair labour practice because he was representative of the respondent at all stages.
40. The respondent was then made aware of the irregularity contained in the recommendation upon which the head of department or director had made the appointment.
41. He by this time had not verified against the minutes of the panel whether the recommendation was in line with the agreement to proceed on scores only. This already constitutes an omission on the part of the respondent.
42. Even though the appointment had already been made, the omission which followed is not the conduct of a reasonable decision of any employer.
43. Mr Jafta’s version was that he proceeded to the school to ‘doublecheck and touch base’ with the school whether their recommendation was in line with what they required. It is at this point that I found his evidence to be completely unreliable and unlikely. Mr Jafts’s evidence was not of a very high calibre. He was evasive, argumentative and defensive to say the least.
44. This conclusion I reach because his evidence was that at a meeting called by him after the grievance had been sent to him by the SGB, virtually the same SGB indicated to him that they were happy with the appointment. I find this exceedingly unlikely.
45. He took no action to ensure the director or head of department became aware of the irregularity which was then very clear and did not refer the grievance to the DDM to proceed with.
46. The applicant has discharged the onus that there was an unfair labour practice in the sense of the omission by the respondent, resulting in the non appointment of the applicant.
47. This brings me to a consideration of remedy. Because of the particularly of the circumstances of this case namely that the score of Mrs Burger, the second respondent was not substantially different to that of Mrs Wiese and there is no evidence that Mrs Burger was in any way not capable of occupying the post of deputy principal and she has in fact occupied it for some time.
48. Both applicant and second respondent have been blameless throughout this process.
49. I have taken into account the will of the SGB as a good indication of the needs of leaners and so also the interests of the child.
50. Against that Mrs Wiese the applicant has been shown to be equally competent because she has occupied another substantive vacant funded post as acting deputy principal of the school.
51. Rather than order that the second respondent vacate the post, I find it would be fairer and more equitable to all parties including the respondent to make an order that the respondent make a permanent appointment of the applicant into the post in which she is at present acting.
52. This brings me to a further consideration and that would be the calculation of the difference in remuneration received by the applicant for the period which she was not yet acting.
53. The applicant has not testified and so has not brought forward any other evidence. The information I have was that her salary because of its grading exceeds that of the position into which she might have been appointed.
54. She has not quantifed her reduced remuneration and thus has not discharged the onus on her in this regard.
55. In any event and she has been receiving a similar amount in her acting position currently held for most of the time being.
56. The applicant has been subjected to an unfair labour practice of the respondent because of the respondent's ommission to properly satisfy itself that the recommendation received for appointment was regular and compliant and secondly once having become aware of the fact that the recommendation was not in line with the wishes of the SGB, failed to take any steps to rectify this irregularity.
57. The applicant has been subjected to an unfair act or omission of the respondent involving promotion.
58. The Department of Education-Gauteng is directed, on or before 1 December 2019 to appoint permanently, CJ Wiese into the substantive funded post of deputy principal at the Roodepoort High School with effect from 1 May 2018 including all benefits applicable to the post.